394 F.3d 1278 (9th Cir. 2005), 02-73947, Azarte v. Ashcroft

Docket Nº:02-73947.
Citation:394 F.3d 1278
Party Name:Salvador AZARTE; Celia Castellon, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
Case Date:January 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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394 F.3d 1278 (9th Cir. 2005)

Salvador AZARTE; Celia Castellon, Petitioners,


John ASHCROFT, Attorney General, Respondent.

No. 02-73947.

United States Court of Appeals, Ninth Circuit

January 18, 2005

Argued and Submitted April 14, 2004.

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Marina Pineda-Kamariotis, Law Office of Marina Pineda-Kamariotis, San Francisco, CA, for the petitioners.

Peter D. Keisler, Assistant Attorney General, Civil Division, Washington, DC; David V. Bernal, Assistant Director, Office of Immigration Litigation, Civil Division, Washington, DC; Jamie M. Dowd, Trial Attorney, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondents.

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On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A76-356-446, A76-356-447.

Before: REINHARDT, McKEOWN, and PAEZ, Circuit Judges.

REINHARDT, Circuit Judge.

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), does the Board of Immigration Appeals (BIA) abuse its discretion when it dismisses a motion to reopen, timely filed by an alien during his voluntary departure period, because the alien subsequently fails to depart prior to the end of that period while awaiting the BIA's decision? We conclude that it does and that the BIA must decide the motion on the merits.


Salvador Azarte and Celia Castellon ("the Azartes") are natives and citizens of Mexico who entered the United States without inspection in 1987. On April 20, 1990, the Azartes were married in California. They have two children, Jahir, who is now nine, and Nahivy, who is now ten. Both children are U.S. citizens.

The Immigration and Naturalization Service ("INS") commenced removal proceedings against the petitioners on April 17, 1997. The Azartes were charged with being subject to removal as aliens present in the United States without being admitted or paroled. See Immigration and Naturalization Act ("INA") § 212(a) (6) (A) (I); 8 U.S.C. § 1182(a) (6) (A) (i) (2004). Petitioners conceded their removability and requested relief in the form of cancellation of removal, INA § 240A(b), 8 U.S.C. § 1229b(b) (2004), and, in the alternative, voluntary departure, INA § 240B, 8 U.S.C. § 1229c (2004). On April 5, 1999, the Immigration Judge ("IJ") denied their request for cancellation of removal but granted voluntary departure.

In denying cancellation of removal, the IJ concluded that the Azartes had established two of the statutory requirements for such relief--ten years continuous residence and good moral character during such period.1 However, the IJ decided that the Azartes failed to establish the third requirement, namely that removal to Mexico would result in exceptional and extremely unusual hardship to their United States citizen children. The Azartes' children, who were three and four years old at the time, were in good health and did not suffer from any mental, emotional, or physical problems at the time of the IJ's hearing.

The Azartes appealed the IJ's decision to the BIA, and, on April 23, 2002, the BIA affirmed the IJ's decision without opinion and permitted the Azartes thirty days, until May 22, 2002, to depart voluntarily from the country. On the bottom of the order, the BIA notified the petitioners of the three consequences of failing to depart within that period: (1) "the alien shall be removed," (2) "the alien shall be subject to a civil penalty of not less than $1,000 and not more than $5,000," and (3) the alien "shall be ineligible for a period of 10 years for any further relief."

On May 16, 2002, seven days prior to the expiration of the thirty days allotted for voluntary departure, the petitioners timely

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filed a motion to reopen with the BIA pursuant to 8 U.S.C. § 1229a(c) (6) (A) (2004) and 8 C.F.R. § 3.2(c) (2002) (later recodified as 8 C.F.R. § 1003.2(c) (2004)). With their motion to reopen, the Azartes requested a stay of deportation and submitted evidence regarding their son Jahir's newly diagnosed mental disabilities. The Azartes hoped that this information would persuade the BIA that their departure from the United States would constitute an exceptional and extremely unusual hardship for their American-citizen son.

Among the new evidence that the Azartes included in their motion to reopen was a statement from psychologist Jose Lopez, Ph.D., to whom Jahir had been referred by a school counselor because of his behavioral problems. Dr. Lopez diagnosed Jahir as suffering from Attention Deficit Hyperactivity Disorder (ADHD). He recommended medical evaluation by a child psychiatrist and pediatrician and a comprehensive treatment plan, including individual therapy, medication, behavior modification, and collaborative intervention by Jahir's parents and school. Dr. Lopez also recommended continued regular treatment for Jahir's inadequate control over his bodily functions, including enuresis and encopresis. The Azartes also submitted a letter from Illana Kent, M.A., a psychotherapist, who stated that Jahir, in addition to having ADHD, suffered from increased anxiety and depression, for which he was receiving ongoing treatment. Finally, the Azartes included a declaration from Jahir's mother averring that her husband's medical insurance from his job in the United States was the source of payment for Jahir's therapy. She also stated that the family would be unable to afford continued treatment and medicine for her son if they were deported to Mexico.

The BIA did not act on the petitioners' motion until approximately six months later, on October 28, 2002. Then, in a one-judge order, the BIA concluded that, because the petitioners failed to depart voluntarily as specified, they were ineligible for cancellation of removal. The Azartes timely filed a petition for review with this court.


We have jurisdiction over the BIA's denial of the Azartes' motion to reopen pursuant to 8 U.S.C. § 1252. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir. 2003).


A. Explanation of the Issue

We must decide whether, under IIRIRA, the BIA's failure to rule on a petitioner's motion to reopen prior to his voluntary departure date either requires or authorizes it to decline to rule on the merits of the motion. In IIRIRA, Congress provided for both voluntary departures and motions to reopen. At the conclusion of removal proceedings, an alien may be granted up to 60 days within which to voluntarily depart and may file a single motion to reopen within 90 days. See 8 U.S.C. § 1229c(b) (2) (2004); 8 U.S.C. § 1229a(c) (6) (C) (i) (2004). This case concerns the interrelationship between these statutory provisions and the pertinent regulations of the Executive Office for Immigration Review (EOIR), Immigration and Naturalization Service (INS), the Department of Justice (DOJ), and the Department of Homeland Security (DHS).

Under the BIA's current interpretation, the INA's voluntary departure and motion to reopen provisions affect each other in two ways. First, if an alien departs within his voluntary departure period, he forfeits any motion to reopen he may have filed because he is no longer within the United States. 8 C.F.R. § 1003.2(d) (2004). Second,

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as demonstrated by the BIA's decision in the Azartes' case, the BIA has decided that if an alien fails to depart within his voluntary departure period, he also forfeits any pending motion to reopen because he has violated his voluntary departure order and is, therefore, no longer eligible to receive the underlying relief.2 The BIA's interpretation is not required by any EOIR, INS, DOJ, or DHS regulation.3 The consequences of the interpretation, however, are drastic. As the BIA rarely if ever rules on a motion to reopen before an alien's voluntary departure period has expired, the interpretation serves to deprive aliens who are afforded voluntary departure of their statutory right to a determination on the merits of motions to reopen.

In the Azartes' case, the couple filed their motion to reopen well within both their voluntary departure period and the 90-day statutory period for motions to reopen. However, as is the case generally, the BIA had not ruled on their motion by the date they were required to depart voluntarily. Had the Azartes left prior to that date or at any time before the BIA acted on their motion to reopen, the BIA would have dismissed the motion on the ground that the Azartes were no longer in the country. Instead, they stayed, only to have the BIA summarily dismiss their motion because they had failed to depart. Either way, stay or go, under the BIA's interpretation, the Azartes were precluded from obtaining a ruling on the merits of their properly filed, timely motion to reopen. Under that interpretation, it is not only the Azartes but the large class of aliens afforded voluntary departure who are functionally deprived of their statutory right to file a motion to reopen as a result of the requirements and consequences of the award of voluntary departure.4

B. History of Motions to Reopen and Voluntary Departure

To understand the relationship between motions to reopen and voluntary departure, a short history of these provisions is useful.

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1. Motions to Reopen

A motion to reopen is a traditional procedural mechanism in immigration law with a basic purpose that has remained constant--to give aliens a means to provide new information relevant to their cases to the immigration authorities. See Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 3.05[7] [a] (2004)[herein-after Immigration Law and Procedure]. Motions to reopen were entertained by the Immigration Bureau at least as early as 1916,5 and, with the...

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